business record exception in Florida

2015Written estimates may qualify as a business record exception to the hearsay rule if the proponent of the evidence calls a witness who can lay a proper foundation establishing that “production of estimates is a regularly conducted business activity.” Butler v. State, 970 So.2d 919, 920-21 (Fla. 1st DCA 2007); see also § 90.803(6)(a), Fla. Stat. (2013).

2008"Written opinions or estimates may qualify as a business record exception to the hearsay rule under section 90.803(b), Florida Statutes (2006), if production of estimates is a regularly conducted business activity.” Butler v. State, 970 So.2d 919, 920-21 (Fla. 1st DCA 2007).

2008Id. at 504 . [The probable cause affidavit and sworn complaint] might qualify under the business record exception to the hearsay rule to the extent that each is an out of court statement of the person who prepared the record in the regular course of business.

2008See also Neeley v. State, 883 So.2d 861, 863-64 (Fla. 1st DCA 2004) (ruling error reversible where, "[w]hile the medical record itself could qualify under the business record exception, it is clear the contested phrase contained therein could not because the resident who took the statement had no personal knowledge of the facts, and the victim was under no business duty to transmit the statement") (citing Van Zant, 372 So.2d at 503 ).

2008Relying on Love v. Garcia, 634 So.2d 158 (Fla.1994), this Court held "that a hospital record of a blood test made for medical purposes, which is maintained by the hospital as a medical or business record may be admitted in criminal cases pursuant to the business record exception to the hearsay rule." Baber, 775 So.2d at 263 .

2008However, in an abundance of caution and apparent foresight, we emphasized that "defendants must be given a full and fair opportunity to contest the trustworthiness of such records before they are submitted into evidence." Id.; see also Love v. Garcia, 634 So.2d 158 (Fla.1994) (holding once predicate has been laid for admission of medical records under the business record exception to hearsay the opposing party must be given an opportunity to prove the untrustworthiness of the records).

2017While hearsay evidence is generally excluded as "inherently untrustworthy because the party against whom such evidence is offered has had no opportunity to test its veracity by cross-examining the statement at the time the statement was made," admissions of a party opponent are an exception to the rule because "a party can hardly complain that he had no opportunity to cross-examine himself at the time the admissions were made." Metropolitan Dade County v. Yearby, 580 So. 2d 186, 188 (Fla. 3d DCA 1991).

2017While hearsay evidence is generally excluded as "inherently untrustworthy because the party against whom such evidence is offered has had no opportunity to test its veracity by cross-examining the statement at the time the statement was made,” admissions of a party opponent are an exception to the rule because “a party can hardly complain that he had no opportunity to cross-examine himself at the time the admissions were made.” Metropolitan Dade County v. Yearby, 580 So.2d 186, 188 (Fla. 3d DCA 1991).

2008Ehrhardt, Florida Evidence § 803.6, at 876 n. 3, 877 (2007 ed.) (citing, e.g., United States v. Kim, 595 F.2d 755, 760-64 (D.C.Cir.1979) (rejecting an argument that a document created solely for litigation purposes was admissible as a business-records summary of otherwise admissible records, which were not produced)). [7] Similar to the telefax at issue in Kim , the release-date letter cannot be admitted as a summary of otherwise admissible records, which were not produced.

2008Ehrhardt, Florida Evidence § 803.6, at 876 n. 3, 877 (2007 ed.) (citing, e.g., United States v. Kim, 595 F.2d 755, 760-64 (D.C.Cir.1979) (rejecting an argument that a document created solely for litigation purposes was admissible as a business-records summary of otherwise admissible records, which were not produced)). 7 Similar to the telefax at issue in Kim , the release-date letter cannot be admitted as a summary of otherwise admissible records, which were not produced.

2006We rejected the State's argument that the report should be admitted under the business record exception to the hearsay rule and certified the question to the Florida Supreme Court, Johnson, 929 So.2d at 8-9 ; see also Belvin v. State, 922 So.2d 1046 (Fla. 4th DCA), review granted, 928 So.2d 336 (Fla.2006) (holding en banc that the portions of the breath test affidavit pertaining to the technician's procedures and observations constitute testimonial evidence, and were inadmissible under Crawford ).

2006See, e.g., Johnson v. State, 929 So.2d 4 (Fla. 2d DCA 2005) (holding that admission of FDLE lab test introduced through supervisor of unavailable individual who actually performed lab tests *187 was testimonial hearsay even if admitted as a business record and violated defendant's right of confrontation), rev. granted, 924 So.2d 810 (Fla.2006); Belvin v. State, 922 So.2d 1046, 1054 (Fla. 4th DCA 2006) (holding that, in DUI proceeding, portions of breath test affidavit pertaining to technician's procedures and observations in administering the breath test constituted testimonial evidence, and a

2000Phillips v. Ficarra, 618 So.2d 312, 313 (Fla. 4th DCA 1993).

1994Phillips v. Ficarra, 618 So.2d 312, 313 (Fla. 4th DCA 1993).

2008Relying on Love v. Garcia, 634 So.2d 158 (Fla.1994), this Court held "that a hospital record of a blood test made for medical purposes, which is maintained by the hospital as a medical or business record may be admitted in criminal cases pursuant to the business record exception to the hearsay rule." Baber, 775 So.2d at 263 .

2008We said "that a hospital record of a blood test made for medical purposes, which is maintained by the hospital as a medical or business record may be admitted in criminal cases pursuant to the business record exception to the hearsay rule." Id. at 263 .

2008Prior to admitting the computer printout under the business record exception to the hearsay rule, the State was required to lay a proper predicate which requires that a record custodian or other qualified person employed by the bank testify that the information contained in the statement was generated by a person with knowledge, that the information contained in the statement was kept in the course of the bank's regular business activity, and that it was the regular practice of the bank to prepare such statements. § 90.803(6)(a); Brooks v. State, 918 So.2d 181 (Fla.2005); Dietz v. State, 534 S

2008Prior to admitting the computer printout under the business record exception to the hearsay rule, the State was required to lay a proper predicate which requires that a record custodian or other qualified person employed by the bank testify that the information contained in the statement was generated by a person with knowledge, that the information contained in the statement was kept in the course of the bank’s regular business activity, and that it was the regular practice of the bank to prepare such statements. § 90.803(6)(a); Brooks v. State, 918 So.2d 181 (Fla.2005); Dietz v. State, 534 S

2006We rejected the State's argument that the report should be admitted under the business record exception to the hearsay rule and certified the question to the Florida Supreme Court, Johnson, 929 So.2d at 8-9 ; see also Belvin v. State, 922 So.2d 1046 (Fla. 4th DCA), review granted, 928 So.2d 336 (Fla.2006) (holding en banc that the portions of the breath test affidavit pertaining to the technician's procedures and observations constitute testimonial evidence, and were inadmissible under Crawford ).

2006For instance, in Johnson v. State, 929 So.2d 4 , 2005 WL 3556038 (Fla. 2d DCA Dec. 30, 2005), the second district court held that a law enforcement lab report, which established the illegal nature of the substance that the defendant possessed and had been prepared pursuant to the police investigation and admitted to establish an element of the charged drug crime, was testimonial *203 hearsay subject to the confrontation clause, even though the report was admitted at trial under the business record exception to the hearsay rule.

2021Yisrael, 993 So. 2d at 956 .

2012See Yisrael v. State, 993 So.2d 952, 957 (Fla.2008); McElroy v. Perry, 753 So.2d 121, 125 (Fla. 2d DCA 2000); Stam-bor v. One Hundred Seventy-Second Collins Corp., 465 So.2d 1296, 1298 (Fla. 3d DCA 1985).

2013State v. Johnson, 982 So.2d 672, 676-81 (Fla.2008) (listing and discussing cases providing indicia of testimonial reports).

2012State v. Johnson, 982 So.2d 672 (Fla.2008) (FDLE lab report was testimonial and, without the testimony of the preparer, its admission violated the Confrontation Clause).

2009This argument has been accepted in our own decision in Bertoloti v. State, 831 So.2d 1281 (Fla. 4th DCA 2002), and by the First District in Stewart v. State, 926 So.2d 413 (Fla. 1st DCA 2006).

2007See Stewart v. State, 926 So.2d 413, 415 (Fla. 1st DCA 2006) (reversing revocation of probation where the only evidence that conduct which led to discharge from drug treatment amounted to a "willful" or "substantial" violation of condition of community control was hearsay testimony); Meade v. State, 799 So.2d 430, 433 (Fla. 1st DCA 2001) ("Finally, both the probation officer's testimony and the treatment counselor's report were hearsay and, because the probation officer neither prepared nor was the custodian of the treatment counselor's report, *264 the report was not subject to the business r

2024The record custodian or any qualified witness who has the requisite knowledge to testify as to how the record was made can lay the necessary foundation.”) (citation omitted); Reynolds v. State, 660 So. 2d 778, 780 (Fla. 4th DCA 1995) (“By defense counsel's simply objecting to testimony on the grounds that it is ‘cumulative,’ without more, the trial court is not alerted to the fact that the objection is based upon a contention that the probative value of the otherwise admissible evidence is outweighed by the danger of unfair prejudice.”) (citing Pardo v. State, 596 So. 2d 665 (Fla.1992)); Bass

2024The record custodian or any qualified witness who has the requisite knowledge to testify as to how the record was made can lay the necessary foundation.”) (citation omitted); Reynolds v. State, 660 So. 2d 778, 780 (Fla. 4th DCA 1995) (“By defense counsel's simply objecting to testimony on the grounds that it is ‘cumulative,’ without more, the trial court is not alerted to the fact that the objection is based upon a contention that the probative value of the otherwise admissible evidence is outweighed by the danger of unfair prejudice.”) (citing Pardo v. State, 596 So. 2d 665 (Fla.1992)); Bass

2024The record custodian or any qualified witness who has the requisite knowledge to testify as to how the record was made can lay the necessary foundation.”) (citation omitted); Reynolds v. State, 660 So. 2d 778, 780 (Fla. 4th DCA 1995) (“By defense counsel's simply objecting to testimony on the grounds that it is ‘cumulative,’ without more, the trial court is not alerted to the fact that the objection is based upon a contention that the probative value of the otherwise admissible evidence is outweighed by the danger of unfair prejudice.”) (citing Pardo v. State, 596 So. 2d 665 (Fla.1992)); Bass

2024See Rodriguez v. State, 77 So. 3d 649 (Fla. 3d DCA 2011) (applying abuse of discretion review to a trial court's determination of the reliability and admissibility of child hearsay statements pursuant to section 90.803(23), Florida Statutes); Osagie v. State, 58 So. 3d 307 , 309 n.2 (Fla. 3d DCA 2011) (“In order to lay a foundation for the business record exception to the hearsay rule, it is not necessary to call the person who actually prepared the document.

2021There also was no testimony as to the procedures employed by Google Maps in taking the photograph”). 2 2 See, e.g., United States v. Brooks, 715 F.3d 1069, 1079 (8th Cir. 2013) (holding GPS records were properly admitted under the business records exception where executive of security company testified that “company routinely keeps the GPS data on the company server”); United States v. Wood, No. 08-CR-92A, 2009 WL 2157128 , at *4 (W.D.N.Y. 2009) (holding that GPS records were properly admitted as business records after 8 The State did not argue below, or now on appeal, that the evidentiary fou

2017See § 90.803(6), (8); see also Whitley v. State, 1 So.3d 414, 415 (Fla. 1st DCA 2009).

2017Co. v. Alaqua Prop., 190 So.3d 662, 665 (Fla. 5th DCA 2016) (holding that a promissory note does not have to qualify as a business record under the business record exception to the hearsay rule and is admissible for its independent legal' significance—to establish the -existence of the contractual relationship and the rights and obligations of the parties to the note, regardless of the truth of any assertions made in the document).

2017Co. v. Alaqua Prop., 190 So.3d 662, 665 (Fla. 5th DCA 2016) (holding that a promissory note does not have to qualify as a business record under the business record exception to the hearsay rule and is admissible for its independent legal' significance—to establish the -existence of the contractual relationship and the rights and obligations of the parties to the note, regardless of the truth of any assertions made in the document).

2016See id. at 863-64 (holding that hearsay objection was sufficient to preserve the issue of whether the business record exception or medical treatment exception applied); Richardson, 875 So.2d at 675-76 (holding that hearsay objection was sufficient to preserve the issue of whether the business records exception applied); Andrews v. State, 261 So.2d 497, 497-98 (Fla. 1972) (holding that hearsay objection was sufficient to preserve the issue of whether a predicate had been properly laid for impeachment purposes); see also State v. Crofoot, 97 So.3d 866, 868 (Fla. 1st DCA 2012) (holding that hears

2016See id. at 863-64 (holding that hearsay objection was sufficient to preserve the issue of whether the business record exception or medical treatment exception applied); Richardson, 875 So.2d at 675-76 (holding that hearsay objection was sufficient to preserve the issue of whether the business records exception applied); Andrews v. State, 261 So.2d 497, 497-98 (Fla. 1972) (holding that hearsay objection was sufficient to preserve the issue of whether a predicate had been properly laid for impeachment purposes); see also State v. Crofoot, 97 So.3d 866, 868 (Fla. 1st DCA 2012) (holding that hears

2016See Rodgers v. State, 113 So.3d 761, 775 (Fla.2013) ("To admit a document into evidence pursuant to the business record exception [of the hearsay rule], the proponent must show that the record was 'kept in the course of a regularly conducted business activity’ by presenting the ‘testimony of the custodian or other qualified witness’ or by presenting a sufficient 'certification or declaration.’ § 90.803(6)(a), Fla. Stat. (2003).”). 2 .

2016See id. at 863-64 (holding that hearsay objection was sufficient to preserve the issue of whether the business record exception or medical treatment exception applied); Richardson, 875 So.2d at 675-76 (holding that hearsay objection was sufficient to preserve the issue of whether the business records exception applied); Andrews v. State, 261 So.2d 497, 497-98 (Fla. 1972) (holding that hearsay objection was sufficient to preserve the issue of whether a predicate had been properly laid for impeachment purposes); see also State v. Crofoot, 97 So.3d 866, 868 (Fla. 1st DCA 2012) (holding that hears

2015See Williams v. State, 850 So.2d 627, 628 (Fla. 2d DCA 2003) (reversing a restitution award based solely on estimates for repair of a vehicle that constituted inadmissible hearsay).

2015"Florida case law has recognized Professor Charles Ehrhardt’s discussion of controlling law regarding the business record exception.” Shorter v. State, 98 So.3d 685, 690 (Fla. 4th DCA 2012), rev. denied, 133 So.3d 528 (Fla.2014). 3 .